1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 UNITED STATES OF AMERICA, Case No. 2:12-cr-00158-KJD-PAL 2:12-cr-00220-KJD-PAL 8 Plaintiff, 2:16-cv-01332-KJD 2:16-cv-01333-KJD 9 v.

10 SAMUEL RODRIGUEZ, ORDER 11 Defendant.

12 Presently before the Court are Defendant’s Motions to Vacate under

13 filed in case 2:12-cr-00158-KJD-PAL (the illegal reentry case) as Docket No. 43/44 and 2:12-cr- 14 00220-KJD-PAL (the supervised release case) as Docket No. 31. 15 Background 16 Defendant Samuel Rodriguez pled guilty to the separate offense of attempted reentry of 17 removed alien in violation of

in both cases. On April 2, 2013, Defendant was 18 sentenced to a term of 74 months’ custody in the illegal reentry case. (#30). Defendant’s 19 advisory sentencing guideline range calculation included a 16-level enhancement pursuant to 20 United States Sentencing Guideline Section 2L1.2(b)(1)(A)(ii) for a previous removal following 21 a conviction for a “crime of violence.” On the same date, he was sentenced to eight (8) months’ 22 custody in the supervised release case consecutive to his sentence in the illegal reentry case (#23) 23 Defendant filed the instant motions under

in both cases on June 13, 2016. 24 Analysis 25 Defendant’s motions were filed more than one year after his conviction became final in 26 both cases and are therefore untimely pursuant to

(f)(1). Defendant has not 27 28 1 | alleged or demonstrated that any of the alternative limitation periods set forth in Section 2255(f) 2 are applicable with respect to his motion. 3 Defendant contends that his motions are timely pursuant to

(f)(3)3 in 4) light of Johnson v. United States,

(2015). In Johnson, the Supreme Court struck 5 | down the residual clause of the Armed Career Criminal Act (‘ACCA’) as unconstitutionally 6 | vague. However, the Supreme Court has subsequently held that the Sentencing Guidelines are 7 | not subject to a void for vagueness challenge under the Due Process Clause and that Johnson is 8 | not applicable to the advisory Guidelines. Beckles v. United States,

(2017). Therefore, Johnson is not applicable in these cases and thus cannot serve to extend the 10 | limitations period under

(f)(3). 11 Conclusion 12 | The Court finds Defendant’s motions to be time barred under

(f). 13 Accordingly, IT IS HEREBY ORDERED that Defendant’s Motions to Vacate, Set Aside, 14 or Correct Sentence under

are DISMISSED. 15 IT IS FURTHER ORDERED that the Court DENIES Defendant a certificate of 16 | appealability, as Defendant has not made a substantial showing that he has been denied a 17 | constitutional right. See

(c)(2) (providing that a certificate shall issue “only if 18 | the applicant has made a substantial showing of a denial of a constitutional right’). 19 The Clerk’s Office shall enter JUDGMENT accordingly. IT ISSO ORDERED. Dated this 30" day of September, 2019. 22 Co ™ 23 yo Kent J. Dawson 24 United States District Judge 25 26 27 28

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